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Honor by the Colonial Secretary, respecting the issuing of a Writ by your Honor, under the 12th section of the Constitution Act, for the election of a member to serve in the Provincial Council for the Pensioner Settlements in the place of Captain Powditch; and requesting that I would report upon the various matters therein contained.

1. The first of these letters informs your Honor that his Excellency the Governor, to whom you had made application to cause the public Seal of the Colony to be affixed to the form of writ which, in this case, I had made out, had been advised that it was not contemplated by that Act "that a writ issued by a Superintendent should be sealed with the public Seal of the Colony, and that it would not be proper for his Excellency to allow it to be so affixed."

The novelty of this advice renders it necessary for me to make an observation or two on the nature of the public instruments called writs, and whereof there is a great variety.

Writ, in Norman-French, Bref, in Law-Latin, Breve, is a technical term, having a meaning as fixed and definite as the word King, or any other used in legal phraseology. It is a letter or writing in the name and under the Seal of the Sovereign, commanding some act to be done, or conferring some right or privilege. The name and seal of the person or persons in whom the Sovereign power resides, are essential requisites of the instrument, and if either should be wanting, it cannot be a Writ. There are two classes of writs, namely, writs patent and writs close. The former, better known by the name of letters patent, are addressed to all persons indiscriminately: they are not sealed up, but have the Queen’s seal attached to them. The latter are directed to particular persons, for particular purposes, and are sealed up, or, at least, supposed to be so.

And therein they [letters patent] differ from certain other letters of the Queen, sealed also with her great seal, but directed to particular persons, and for particular purposes, which, therefore, not being proper for public inspection, are closed up and sealed on the outside, and are thereupon called writs close, literae clausae: and are recorded in the close-rolls in the same manner as the others are in the patent-rolls.—Bl., ii., 408.

Peers may be created by either class of instruments; but when the creation is by writ close, the dignity conferred has no descendible qualities until the person thereby ennobled has taken his seat in the Upper House. The Chief Justice of the Queen’s Bench, is created by writ close; but the other Judges of that Court are appointed by letters patent.

Whether writs were in use before the Norman conquest, has been a subject of learned controversy. It is probable that they were, although not in their present form. Bacon, in his Abridgment of the Law, informs us (tit., 449) that the Court of Chancery was erected for the issuing of writs, for the reasons following:—1. That it might appear that all power of judicature whatsoever flowed from the King. 2. That the Crown might have its proper fines or fees from the administration of justice, which formed then, as now, a part of its ordinary revenue. 3. To preserve uniformity in the law; for whether the writs went to the Sheriffs or to the Judges of the Superior Courts, they were in one form; and limited the jurisdiction which they conferred.

In the latter Courts no private suits could be instituted without the authority of the King’s writ out of chancery; and if any of them adjudicated in any such case, without having been first thereunto authorised by writ, the proceedings would be regarded as coram non judice.

The same author writes, in another part of his work, "The Parliament commences by the King’s writ of summons, agreeably to that rule which was established before the Conquest, viz., that all judicature proceeded from the King. William the Conqueror seems to have been more jealous of this part of his prerogative than of any other; and from his time this rule has been regularly observed."

In all statutes in our Statute Book, the terms breve, bref, writ have but the one signification, viz., the Sovereign’s letter, sealed with his seal. Thus, in the most ancient of them, the Magna Charta of Henry the Third, we find breve used as a term whose meaning was then well defined. "Breve quod vocatur Precipe," &c. (the writ that is called Precipe); and "Nihil detur de cetero pro brevi inquisitionis," &c. (nothing shall henceforth be given for a writ of Inquisition, &c.)

The first writ of summons extant upon record, is that of 49 Hen. iii; and it is in the name and under the Seal of that Sovereign, and tested by him. A copy of the instrument is given by Dwarris in his work on Statutes.

During the Commonwealth, all writs were issued in the name of the person or persons in whom the sovereign power resided, viz., the Lord Protector, and the Keepers of the Liberty of England. The writs for the election of members to serve in the Parliament which recalled Charles the Second, were issued in the names of the Keepers of the Liberties of England, in pursuance of the Ordinance in that behalf passed by the preceding Parliament in March, 1659. But as that Monarch did not acknowledge that the sovereign power resided in any person but himself, during the time of his exile, from the death of his father, he could not recognise as writs the instruments so issued. For which reason, it was necessary to legalize them in Parliament. By the first Act passed during his reign, 12 Car. ii., c. 1, it was declared and enacted "That the Lords and Commons now sitting at Westminster, in this present Parliament, are the two Houses of Parliament, to all intents, constructions, and purposes whatsoever, notwithstanding any want of the King’s Writ of Summons, or any other defect."

In the same manner, it was deemed necessary to legalize the letters issued by the Prince of Orange (afterwards William the Third) for holding the Convention Parliament in 1688. By the first act of his reign, it was enacted that "this Convention is declared to be the two Houses of Parliament to all intents and purposes whatsoever, notwithstanding any want of Writ of Summons, or other defect."

The Constitution Act (the 15 & 16 Vict. C. 72) provided (S. 14) that the Governor should cause the first writs for the election of members of the Provincial Council of every Province to be issued within a certain time, and that he should (S. 5) by Proclamation make provision inter alia for the issuing, executing, and returning of the necessary writs for such elections. It further provides (S. 12) that whenever a seat shall become vacant in any such Council, the Superintendent of the Province shall forthwith issue a writ for the election of a new member.

To issue a writ has the same meaning in law as to cause a writ to be issued. It simply implies to give instructions to the proper officer, for the making out and delivering of such instrument. The Chancellor of England issues writs of election in the same manner as does the Speaker of the House of Commons, viz., by warrant directed to the Clerk of the Crown in Chancery—the proper officer for making out such instruments.

If we refer to Acts of Parliament on the subject of elections, we shall find that the words to issue a writ have the same meaning as to cause a writ to be issued.

"The Lord Chancellor, Lord Keeper, or Lords Commissioners of the Great Seal for the time being, shall issue out the writs for election of members to serve in the same Parliament, with as